Harold Koh

When the White House announced last week that it would not comply with the requirements of the War Powers Resolution because the Libya operation does not involve "hostilities," eyebrows arched in curiosity. Many observers questioned the administration's conclusion that America's involvement in the Libya operation no longer fit within the statute's term "hostilities." (The administration's explanation is found on page 25 of this White House report.)

But even more curious was the White House's explanation of how the administration reached this conclusion. Rather than releasing a memorandum from the Justice Department's Office of Legal Counsel (OLC)—as it did at the outset of the military campaign—the administration offered no specific source for its legal conclusions. Instead, the White House's report simply stated that "the President is of the view that" the War Powers Resolution does not apply.

The New York Times's Charlie Savage—who made his name covering the Bush White House's internal debates over the Constitution and the Global War on Terror—immediately picked up on this:

It was not clear whether the Justice Department had endorsed the White House’s interpretation of hostilities. [White House Counsel Bob Bauer] declined to say whether it had signed off on the theory, saying he would not discuss interagency deliberations. In his letter on Tuesday, Mr. Boehner demanded to know whether there was internal dissent about the administration’s legal stance.

Or as Jack Goldsmith succinctly put it: "This is odd." Goldsmith—who was at the center of the Bush-era OLC debates—guessed that "OLC or DOJ has problems of some sort with the Administration’s legal theory."

The speculation was short lived. Yesterday morning the New York Timesconfirmed that the White House's interpretation of the War Powers Resolution was, in fact, rejected by both the Office of Legal Counsel and the Defense Department:

Jeh C. Johnson, the Pentagon general counsel, and Caroline D. Krass, the acting head of the Justice Department’s Office of Legal Counsel, had told the White House that they believed that the United States military’s activities in the NATO-led air war amounted to “hostilities.” Under the War Powers Resolution, that would have required Mr. Obama to terminate or scale back the mission after May 20.

But Mr. Obama decided instead to adopt the legal analysis of several other senior members of his legal team — including the White House counsel, Robert Bauer, and the State Department legal adviser, Harold H. Koh — who argued that the United States military’s activities fell short of “hostilities.” Under that view, Mr. Obama needed no permission from Congress to continue the mission unchanged.

This is an extraordinary story, for several reasons:

1. It reveals the desperate extent to which President Obama is willing to stretch his position to avoid agreeing with the modern conservative position that Congress has specific constitutional tools for limiting the president's war power—most importantly, the power of the purse, and the power to hold up executive and judicial nominations and obstruct other administration priorities—but statutes like the War Powers Act are not among them.

Rather than conceding that point—and thus flatly contradicting his own campaign rhetoric—he has adopted the strained "view" that American armed forces are not still engaged in "hostilities or ... situations where imminent involvement in hostilities" (i.e., the War Powers Resolution's triggering requirement), even though (by the White House's own characterization) U.S. strike sorties are contributing to "the suppression of enemy air defense," as well as a majority of the coalition's refueling assets.